The ‘Sleeping Giant’ Case that Could Upend Jack Smith’s Prosecution of Trump

[florida80]

1/17

The Supreme Court has agreed to consider a case that doesn’t mention the former president, but that could invalidate half of the Jan. 6 charges against him.

Jack Smith is pictured with cameras in the foreground.
Special counsel Jack Smith could be required to prove that the Jan. 6 defendants “corruptly” altered a record as a threshold matter before they can be charged more broadly with obstructing a congressional proceeding. | Drew Angerer/Getty Images



Kimberly Wehle is a professor at the University of Baltimore School of Law and author of How to Read the Constitution — and Why. Her forthcoming book is How the Pardon Power Works — and Why.

There’s been a lot of attention paid to the Supreme Court’s upcoming decision on Donald Trump’s claim of immunity from prosecution for actions taken while president, a judgment that will have big implications for the 2024 presidential campaign and special counsel Jack Smith’s indictment of the former president on charges related to Jan. 6. But there’s a sleeping giant of a case also percolating in the Supreme Court that’s even more likely than the immunity issue to impact Smith’s prosecution of Trump.

The case is Joseph W. Fischer v. United States, which the court agreed to hear in December, and which doesn’t explicitly mention Trump. At issue is whether prosecutors and the Department of Justice have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a Jan. 6 defendant named Joseph Fischer. Should the court side with Fischer, it would also call into question the use of the law against other Jan. 6 defendants — including Trump.

Smith’s indictment contains four counts in total. Two of those are for obstruction of an official proceeding and for conspiracy to do so. Those crimes are part of a relatively recent criminal statute governing financial disclosures known as the Sarbanes-Oxley (or “SOX”) Act, which was enacted following the Enron corporate accounting scandal, and which makes it a crime to obstruct an official proceeding of the U.S. government. The Justice Department has so far used it to charge over 300 people involved in the Jan. 6 insurrection; more than 150 have been convicted of the offense following jury trials or pleaded guilty to it.

Many of these defendants, including Fischer, have argued that the “obstruction of an official proceeding” part of the SOX Act was only meant to apply narrowly to financial crimes similar to the ones that produced the law in the first place — and not as broadly as the Justice Department has used it in the Jan. 6 cases.

Courts across the country have already been wrestling with the question of whether the SOX Act’s obstruction provisions apply to the various means by which people tried to halt Congress’ examination and ratification of the presidential election results favoring Joe Biden. As of this month, at least 14 judges in 22 cases had backed DOJ’s interpretation. But some have expressed doubts after the Supreme Court agreed to hear Fischer’s case; in at least two of the Jan. 6 cases, trial judges have delayed the defendants’ sentencings pending the Supreme Court’s ruling on the issue, meaning the underlying SOX Act charges may be vulnerable.

The impact of Fischer on the Jan. 6 trial against Trump might not be known until after the Supreme Court wraps up its term in June, at which point it could knock out half of Smith’s counts against Trump. And it could also disrupt the convictions of many Jan. 6 defendants already serving time for their role in the insurrection.

Several conservative members of the high court describe themselves as “textualists” who take the words of a law at face value, and to a textualist reader the SOX Act would likely seem straightforward. Consider its language: “Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.” The statute’s language does not clearly specify that only certain kinds of obstruction qualify.

The broader reading of the statute would appear to be what Congress intended. Remarking on the bill that became the SOX Act, then-Rep. Jim Sensenbrenner (R-Wis.) repeatedly observed that it “strengthens laws that criminalize document shredding and other forms of obstruction of justice.” Referring to the statute in a 2002 White House press release, President George W. Bush likewise touted “strengthening laws that criminalize document shredding and other forms of obstruction of justice.” (Emphases added.) Another part of the law defines “official proceeding” as including “a proceeding before the Congress.”

So, DOJ’s legal equation would appear logically simple: On Jan.. 6, Congress was engaged in the official proceeding of counting the Electoral College votes for president under the Constitution and the Electoral Count Act. Trump took numerous steps to impede that process, and he did it corruptly, which loosely means that he knew what he was doing and his purpose was unlawful.

But here’s the wrinkle. Immediately preceding this language is another provision of the SOX Act, which specifies that whoever “corruptly — alters, destroys, mutilates, or conceals a record, document, or other object ... with the intent to impair the object’s integrity or availability for use in an official proceeding,” engages in a criminal act, too. (Emphasis added.) The Fischer argument is that the two provisions must be read together — that the phrase “or otherwise obstructs” in the broad part of the statute is confined by the narrower provision that came before it, with the link between the two being the opening word “corruptly.”

Under this reading, Smith would be required to prove that the defendants “corruptly” altered a record as a threshold matter before they can be charged more broadly with obstructing a congressional proceeding. He could add charges that the same defendants “otherwise” engaged in other, similar forms of obstruction using records or documents, the argument goes, but the statute doesn’t allow a standalone charge of obstruction of an official proceeding based on conduct such as trespassing on the Capitol building. Fischer and two other defendants in the case, Edward Lang and Garrett Miller, are charged with participating in the events of Jan. 6 — not personally taking any actions regarding records or documents.

The lower court agreed with the defendants, but the U.S. Court of Appeals for the D.C. Circuit reversed, finding that the SOX Act language is broad enough to cover their conduct. (The Supreme Court only took up Fischer’s case, leaving the D.C. Circuit ruling to stand for now as to Lang and Miller.)

The government’s argument is that the broad language of the provision employed by DOJ is clear, and there’s no need to read between the lines to intuit a conclusion that Congress actually meant to qualify all parts of the statute to require a corrupt nexus to a document or record. After all, the law refers to altering a record or otherwise obstructing an official proceeding — it doesn’t say “and.” In the words of Justice Oliver Wendell Holmes, writing in 1929, “there is no canon against using common sense in construing laws as saying what they obviously mean.” Although conservative jurists, adhering to the plainest reading of the text, would presumably agree with the Justice Department, the fact that the Supreme Court voted to consider the Fischer case after so many Jan. 6 defendants have been convicted of violating the SOX Act means that a number of justices do have a problem with DOJ’s interpretation.

Needless to say, a Supreme Court ruling that limits the application of the obstruction charge to documents or records has the potential to undermine Smith’s prosecution of Trump and overturn hundreds of existing Jan. 6 convictions. A saving grace for Smith could be that in Trump’s case, the indictment contains other allegations, including that he assisted in devising and implementing a plan to submit fraudulent slates of presidential electors to obstruct the certification proceeding, so it seems distinguishable from Fischer’s case. A fraudulent slate of electors is a document, after all. But until such point that the Jan. 6 case against Trump goes to the jury for deliberation on a verdict, the Supreme Court could rule in a way that gives Trump room to file a fresh motion to dismiss the SOX Act counts against him, which would produce even more delay.



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The trial is currently set for March 4 on four charges — the two SOX Act charges, plus one count of conspiracy to defraud the United States and one count of conspiracy to threaten the exercise of rights secured under the Constitution, in this case, the right to vote. Although the presidential immunity appeal could slow things down, the Supreme Court hasn’t even agreed to hear it yet and could conceivably decline. Moreover, Trump will likely lose anyway, which means Smith would have to wait that one out until the court rules in June, at the latest. At that point, he can go to trial over the summer on all four counts in sufficient time to secure a jury verdict before the November election.

If the immunity issue resolves before March 4, or at least before Fischer is decided, Smith — and for that matter, U.S. District Judge Tanya Chutkan — may go forward with a trial on all four counts despite the risk that two of them might be declared invalid. (Smith could seek expedited review of Fischer in the Supreme Court, but it denied a rush request on the immunity issue, so that effort would seem futile.) If the trial occurs on the sooner side, and the Supreme Court later rules in a way that impacts Trump’s case, it could give Trump a basis to appeal a conviction on the rationale that the jury was tainted by evidence bearing on flawed SOX Act charges. (The problem for Trump would be that the relevant evidence probably overlaps with the conspiracy to defraud the United States charge anyway.) If a guilty verdict is reversed on appeal for some reason, Smith would have to retry Trump, which is not feasible given the treacherous politics of prosecuting former presidents not once, but twice. And if Trump wins the election, he’d surely call off the prosecution or try to pardon himself. Alternatively, Smith could go to trial in March on just the two remaining counts, but that would cut down the numerical odds of a guilty verdict — not to mention the fact that the first SOX Act count is the only one that doesn’t require proof of a conspiracy, or a meeting of the minds between more than one person — and will be perceived as a political triumph for Trump.

At a minimum, then, the Supreme Court’s decision to hear the Fischer case means the Jan. 6 case against Trump has legal exposure if it goes to trial on March 4, although the court might ultimately uphold DOJ’s use of the obstruction charge in Fischer. And if it doesn’t back the government … well, that would have enormous legal and political impacts for hundreds of Americans, perhaps most especially for a certain former president.